In the Matter of a Mail ) May 28, 1993 Dispute Between ) ) RICHARD F. SMITH ) ) and ) ) W. MICHAEL LOVERN ) P. S. Docket No. MD-177 APPEARANCE FOR DISPUTANT Melvin J. Tublin, Esq. SMITH: Poles, Tublin, Patestides & Stratakis 46 Trinity Place New York, NY 10006-2288 APPEARANCE FOR DISPUTANT W. Michael Lovern LOVERN: 5705 Windmier Circle Dallas, TX 75252-5008
On May 11, 1993, an Administrative law Judge issued an Initial Decision in which she determined that all mail addressed to National Teleprocessing, Inc. (NTI), American Teledial Corp. (ATC) or W. Michael Lovern, at 17210 Campbell Road, Suite 280, Dallas, TX 75252-5218, which is currently being held or hereafter received, is to be delivered in accordance with the direction of Richard F. Smith, President of NTI and ATC. Disputant Lovern has filed an appeal from the Initial Decision in which he 1) takes exception to the Administrative Law Judge's findings and conclusions; 2) claims no evidence in the record supports the Initial Decision;1/ 3) contends his constitutional rights have been violated; and 4) alleges Postal Service officials have acted improperly.
Contrary to Disputant Lovern's contentions, the evidence made available in the record supports the Administrative Law Judge's conclusions that mail addressed to National Teleprocessing, Inc. (NTI), American Teledial Corp. (ATC) or W. Michael Lovern, at 17210 Campbell Road, Suite 280, Dallas, TX 75252-5218, should be delivered in accordance with the direction of Richard F. Smith, President of NTI and ATC. While the Administrative Law Judge may have considered information in the March 19, 1993, submittal of Mr. Margan and March 25, 1993, submittal of Disputant Smith to be irrelevant, the remainder of the record including documents forwarded to the Judicial Officer Department by the Office of Field Legal Services2/ in accordance with Domestic Mail Manual § 153.721(c), supports the findings and conclusions in the Initial Decision.3/
Disputant Lovern's contention that his constitutional rights have been violated and that he has been denied due process of law because the courts have not yet rules on his breach of contract claim is also without merit. This proceeding only concerns delivery of the disputed mail and is not the proper forum for resolution of other disagreement between the parties.4/ Moreover, there was no violation of Disputant Lovern's constitutional or statutory rights in this proceeding since he was properly notified of the matters in dispute and given a full opportunity to present evidence on his own behalf and rebut the evidence introduced by Disputant Smith. See Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042, 1048-50 (6th Cir. 1990); Ralpho v. Bell, F.2d 607, 628-29 (D.C. Cir. 1977).
Equally unpersuasive is Disputant Lovern's allegations of impropriety on the part of Postal Service officials. Disputant Lovern has not shown, and the record does not reflect, that the presiding Administrative Law Judge did not act independently and impartially in deciding this case. Moreover, there is no evidence that the presiding Administrative Law Judge has been subjected to any evidence that the presiding Administrative Law Judge has been subjected to any improper influence from any Postal Service official or the opposing party, or that she engaged in any ex parte communications with any Postal Service official regarding this case.5/ The record reflects that the Initial Decision was based on a de novo review of the evidence presented by the parties as well as the materials forwarded by Postal Service Field Counsel. The Administrative Law Judge's findings and conclusions have been reviewed and found to be supported by the record. Thus, there is no merit to Disputant Lovern's allegations of improper conduct on the part of the presiding Administrative Law Judge or any other Postal Service officials concerning this case.
Finally, Disputant Lovern ha snot persuasively demonstrated that the Initial Decision is clearly erroneous, or that any other grounds exist for the Judicial Officer to exercise his discretion to grant review of the Initial Decision. Accordingly, the Initial Decision is the final agency decision as provided in 39 C.F.R. § 965.12.
James A. Cohen Judicial Officer
1/ Disputant Lovern's contention is base din part on the Administrative Law Judge's determination that some information contained in the parties' submittals i irrelevant and must be disregarded in arriving at the Initial Decision (I.D., Conclusions of Law ¶ 1, n.3).
2/ Included in the documents forwarded by Field Counsel is the sworn affidavit of Disputant Smith dated February 16, 1993, which supports the findings and conclusions of the Initial Decision. This affidavit was also incorporated by reference in the March 25, 1993, submittal of Disputant Smith. The documents forwarded by Field Counsel also include the January 20, 1993, letter from Mr. Tublin to Disputant Lovern, which supports the finding that Disputant Lovern was considered to be in default of a Stock Redemption Agreement, thereby allowing his letters of resignation to be accepted under Paragraph 9 and new officers to be appointed under Paragraph 11. See also Minutes of Special Meetings for NTI and ATC, both dated January 19, 1993.
3/ Contrary to Disputant Lovern's contention, the evidence in the record supports the findings that Mr. Tublin is a member of the Board of Directors of NTI and ATC (See e.g., "Application for the Certificate of Authority of American TeleDial Corp." and data from the Texas Secretary of State and Comptroller of Public Accounts). Also, contrary to Disputant Lovern's contention, Mr. Tublin's letter of March 25, 1993, is a sworn statement forwarded as part of Disputant Smith's submission and, with attachments, is an appropriate part of the evidentiary record which supports the findings and conclusions of the Initial Decision.